ALJDEC decisions subject to certification as final

2010A-308472844-ROC · Registrar of Contractors · 2011-05-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 8, 2011 and April 19, 2011

APPEARANCES: Complainant appeared on his own behalf and was represented by attorneys Jason Ebe and Ben Mitsuda, Snell & Wilmer, LLP; Respondent was represented attorney F. Robert Connelly, Holloway odegard forest & kelly, PC and corporate officer and Qualifying Party Doug Kruidenier.

WITNESSES: Jeff Fleetham, ROC Inspector Craig Jackson G. Kurt Grosz, Construction Consultant for Complainant Bart Shea, Project Coordinator for Complainant Doug Kruidenier Doug Ward, Construction Consultant for Respondent Ron Starling, Construction Consultant for Respondent Michael Goldwater, Consultant for Respondent

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent concerning the construction of an addition to his home. The Citation and Complaint issued by the Registrar of Contractors for this case alleges that Respondent abandoned the project without legal excuse, performed with poor workmanship, and failed to comply with a Corrective Work Order. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented Exhibits C1 through C8[1] submitted by Complainant and Exhibits R1 and R2 submitted by Respondent. The parties submitted testimony from the witnesses listed above over the course of two hearing days. At the beginning of the hearing, Complainant presented a chart, attached as Exhibit A to Craig Jackson’s Prehearing Statement filed on March 7, 2011,[2] to list the 68 Corrective Work Order items for which corrective work was ordered and the status of those items at the time of the hearing. In that chart, Complainant admits that some of the items have been corrected. Those items, and the items for which no corrective work was ordered, are not at issue in this matter. Complainant also stated that he is not seeking restitution as a remedy from the Registrar of Contractors.[3] Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding violation of the Arizona contracting laws. FINDINGS OF FACT 1. Respondent is the holder of license B.048800-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to operate as a general contractor for residential projects. Doug Kruidenier is the Qualifying Party. 2. This case concerns an addition built by Respondent onto Complainant’s residence. The addition consists of a circular garage (rotunda) to house and display vintage automobiles, two home office/study rooms, and an enclosed “bridge” walkway between the addition and the existing home, along with other features. The contract price for the construction of the addition was over 1.7 million dollars.[4] 3. Construction began in 2008. After the work was substantially done, Complainant was dissatisfied with several aspects of the workmanship, including walls and ceilings that are not square or plumb, “wavy” walls and ceilings, and other items. Complainant believes that the framing under the drywall is defective and is causing the visible problems in the drywall. Before Complainant filed his ROC complaint in May 2010, Respondent attempted repairs of the items identified by Complainant. Some of those items were repaired. With respect to the walls and ceilings, Respondent tried to correct the deficiencies by using drywall mud to level and smooth the problem areas. Complainant was not happy with the results and filed his ROC complaint on May 5, 2010. 4. ROC Inspector Jeff Fleetham inspected the jobsite on two occasions in June 2010. He issued two Corrective Work Orders (“CWO”), one dated June 4, 2010 and the other dated June 21, 2010, that addressed approximately 90 items of workmanship. Inspector Fleetham went room to room and made conclusions about the workmanship of the items specified in the complaint. The majority of the items concern the walls and ceilings being “wavy,” not square, and not plumb. The CWOs ordered corrections of many, but not all, items and gave Respondent twenty-one days to do so. 5. Respondent repaired some of the items. However, Complainant requested that Respondent describe its proposed method of correcting the walls and ceilings before he would allow access to perform those repairs. When Respondent stated that it would use dry wall mud to smooth the drywall out, Complainant rejected that method and did not grant access for Respondent to do that form of repair. Complainant concluded that Respondent had tried that method multiple times and had not yet corrected the problem. Complainant concluded that Respondent needed to remove the drywall and fix the underlying framing. Respondent refused. At that time, the drywall had not been removed so the framing was not visible. Complainant requested a hearing. 6. Inspector Fleetham testified at the hearing about his findings from his inspections, which included a prehearing inspection on March 4, 2011. He testified that he used a level and T-square to measure areas of the work. He testified that on March 4, 2011, he found that some of the CWO items had been corrected by Respondent, some had been corrected by others that Complainant had brought in, some had been worked on by Complainant after Respondent had performed repair work, some had not been repaired because Respondent claims it was denied access to those items, and he found two items that were not repaired because Respondent disputed the repair order in the CWO. He also testified about specific CWO items. 7. With respect to the two items that Respondent disputes, Inspector Fleetham testified as follows: The first item is labeled “West study balcony” item 4 concerning a window pop out that was not level.[5] The Inspector measured the pop out and found that it was out of level more than ¼ of an inch in four feet which is outside workmanship standards. The second item is labeled “Roof Drains” and concerns the lack of a secondary overflow drain on the roof of the building.[6] The Inspector found that the lack of an overflow drain did not conform to plans and building code.[7] Because Respondent disputes that those two items need correction, it did not repair them. 8. Inspector Fleetham also identified other items that were not within industry standards at his March 2011 inspection. Those are: “West study balcony” items 5, 6, 7, and 8 relating to items that were out of level and not plumb;[8] “Office bathroom at ground level” items 3, 4, and 5 relating to walls that were not square and plumb;[9] “Office area” items 2, 5, and 11 relating to unlevel and not square walls and a hump in the west wall;[10] and “Motorcycle room” items 3 and 4 relating to walls that were not square.[11] 9. Finally, Inspector Fleetham identified items that had been worked on by Respondent but for which Complainant had come behind Respondent and performed further work to correct them: “Study walls, ceiling, and stair pony wall” items 2, 3, 4, 9, 10, 11, and 12 relating to walls and ceilings being out of square and out of plumb and showing “humps and dips;”[12] “Doors” items 1 and 5 relating to ill-fitting doors;[13] “Stair area at ground level to study” items 1 and 2 relating to handrail and stairs that are not square;[14] “Bridge area” items 2, 4, 7, 8, 9, 10, and 11 relating to wall humps/dips, out of square, and other problems;[15] “3 Car Garage” items 1, 2, 3 through 10, 14, 15, and 19 relating to dips in the walls;[16] “Office bathroom at ground level” item 6 relating to a granite back splash that is out of square;[17] “Motorcycle room” item 7 relating to a wall that is not square;[18] and “Rotunda garage” items 1, 2, 3, 6, 8, 9, 10, 11, 15, and 17 relating to walls that are out of square.[19] 10. Complainant presented testimony from Kurt Grosz and Bart Shea in support of his complaint. Grosz is a licensed contractor who does consulting work and was hired by Complainant to do a “cursory visual inspection” of Respondent’s work. Grosz authored a report that is Exhibit C5. He concludes that Respondent made many attempts to correct the problems with the walls and ceilings that were not effective because the underlying problem is the framing upon which the drywall is attached. He testified in support of that opinion. 11. Bart Shea worked as an employee for Complainant just after the addition was started. Shea was coordinating other remodeling work that Complainant was doing in the home. Shea has been a Qualifying Party on several licenses and is currently a licensed contractor. He has abundant construction experience. He testified that he removed a portion of the walls and found the framing underneath to have problems that would cause the issues listed in the CWOs.[20] 12. This tribunal finds the testimony of Grosz and Shea to be credible and gives their testimony substantial weight. 13. Respondent called several witnesses to testify about Respondent’s efforts to comply with the CWO. Respondent’s principal Doug Kruidenier testified that Respondent was willing to make repairs of the walls and ceilings by using drywall mud where possible and replacing drywall if necessary. The parties came to a standstill on those items when Complainant refused to allow Respondent access to do that form of repair. Complainant wanted the framing addressed and not the “cosmetic” repair that Respondent was proposing. Thus, Respondent’s defense is that it was not allowed access to repair the walls and ceilings. 14. The two CWO items that Respondent disputes were addressed by its witnesses Doug Ward and Ron Starling, both of whom are expert witness consultants in the construction industry. Doug Ward testified about the window pop out that was not level, admitting that it was not within workmanship standards but stating that it was a minor deviation that did no harm to Complainant. Ron Starling testified about the missing overflow drain. He testified, and the record shows, that the roof in that area was raised at Complainant’s direction during the construction (field change). This made the parapet for that roof only about one inch tall. With that situation, the overflow drain was not necessary, since water can easily flow off the roof over that parapet. If the parapet had been taller, as according to the original plans, then the overflow would have been necessary. As it is, he testified, it would serve no useful purpose. 15. Ward’s and Starling’s testimony on these items is persuasive. Although the pop out is not within industry standards, the deviation is minor and Complainant has shown no potential harm that may result from its condition. Complainant has not shown that industry standards require a repair that will serve no functional or aesthetic purpose. The overflow drain is similar. Due to a field change authorized by Complainant, that drain is no longer needed. Complainant has not shown any potential harm that may occur due to its absence.[21] 16. Respondent has prevailed on the two items that it disputed. 17. However, the greater weight of the evidence shows that Respondent did not build the walls and ceilings according to workmanship standards and did not correct the deficiencies in an appropriate manner before Complainant fired Respondent on September 3, 2010. Respondent should have abandoned its efforts with the drywall mud because it was not working. Respondent should have attempted a different means of repair.[22] 18. This tribunal finds that Respondent has not met minimum workmanship standards and has not completely complied with the CWO. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[23] Further, the standard of proof at hearing is by preponderance of the evidence.[24] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[25] Complainant has met that burden with respect to several items in the CWOs. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(1)(abandonment or refusal to perform without legal excuse), (A)(23)(failure to comply with an ROC Corrective Work Order), and (A)(3) by way of ROC Rule R4-9-108(failure to meet workmanship standards). In his closing argument, Complainant did not argue in support of finding a violation of subsection (A)(1). Therefore, that allegation has been abandoned. 3. The evidence shows violation of subsections (A)(3) and (A)(23). Complainant has not requested restitution and it is clear from the record that Complainant will not allow Respondent to perform further work on the property. Therefore, ordering Respondent to perform corrective work will not be considered as a sanction. 4. Respondent has a good license history. The appropriate sanction in this matter should be a one-day disciplinary suspension of its license. RECOMMENDED ORDER IT IS RECOMMENDED that license B.048800-R, held by Brothers Custom Homes, Inc., be suspended for one day beginning the effective date of the Registrar’s Order.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the order will be 40 days from the date of that certification.

Done this day, May 26, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit C1 includes C1A and C1B; Exhibit C2 includes C2A and C2B; Exhibit C4 includes C4A through C4J. [2] The chart will hereinafter be referred to as Exhibit A. However, it has not been admitted as a hearing exhibit but only as a document to assist with reviewing the evidence. [3] There is a concurrent civil action pending in Maricopa County Superior Court. [4] Exhibit C1. [5] This item is on page 7 of the 6/4/10 CWO. [6] This item is on page 8 of the 6/4/10 CWO. [7] The building has passed inspection by the local building authority. [8] These items are on page 7 of the 6/4/10 CWO. [9] These items are on page 8 of the 6/4/10 CWO. [10] These items are on page 2 of the 6/21/10 CWO. [11] These items are on page 3 of the 6/21/10 CWO. [12] These items are on page 2 of the 6/4/10 CWO. [13] These items are on page 3 of the 6/4/10 CWO. [14] These items are on page 3 of the 6/4/10 CWO. [15] These items are on pages 3-4 of the 6/4/10 CWO. [16] These items are on pages 4-6 of the 6/4/10 CWO. [17] This item is on page 8 of the 6/4/10 CWO. [18] This item is on page 4 of the 6/21/10 CWO. [19] These items are on pages 4-6 of the 6/21/10 CWO. [20] See Exhibit C6. [21] Without evidence from the local building authority, this tribunal cannot determine whether the building code requires the drain or not. That question is for the local building authority to address. [22] Respondent’s theory that the framing was damaged by Complainant’s failure to condition the air in the rotunda is too speculative to give much weight. [23] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [24] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [25] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826